Opinion
A179343
03-20-2024
In the Matter of J. R. S. G., a Person Alleged to have Mental Illness. v. J. R. S. G., Appellant. STATE OF OREGON, Respondent,
Christopher J. O'Conner and Multnomah Defenders, Inc., fled the brief for appellant. Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Robert A. Koch, Assistant Attorney General, fled the brief for respondent.
This is a nonprecedential memorandum opinion pursuant to ORAP 10.30 and may not be cited except as provided in ORAP 10.30(1).
Submitted February 2, 2024
Deschutes County Circuit Court 22CC04349; Owyhee Weikel-Magden, Judge.
Christopher J. O'Conner and Multnomah Defenders, Inc., fled the brief for appellant.
Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Robert A. Koch, Assistant Attorney General, fled the brief for respondent.
Before Shorr, Presiding Judge, Mooney, Judge, and Pagán, Judge.
PAGAN, J.
Appellant challenges a circuit court judgment that found him to be a person with mental illness as defined by ORS 426.005(1)(f), committing him to the custody of Oregon Health Authority (OHA) and prohibiting purchase or possession of a firearm. ORS 426.130(1)(a)(C), (D). Appellant assigns error to the trial court's finding that he was a danger to others due to his mental disorder at the time of the hearing. Appellant argues that his aggressive behavior and violent act in the hospital were in response to confinement rather than a result of his mental disorder, and his negative fixation on the LGBTQ community does not form the basis for a prediction that future violence is highly likely. We agree with appellant that the evidence of his behavior in the hospital and vague threats toward a particular community were insufficient to conclude he was a danger to others. Accordingly, we reverse.
We review civil commitment cases for legal error. State v. K. M, 314 Or.App. 586, 587, 496 P.3d 1099 (2021). Pertinent to this case, the state must show by clear and convincing evidence "that actual future violence is highly likely" to demonstrate someone is a danger to others. Id. at 592. A single violent act cannot establish that someone is a danger to others if anything indicates it was an isolated incident. State v. T. M, 296 Or.App. 703, 709, 437 P.3d 1197 (2019). However, evidence of actual violence is unnecessary to establish that someone is a danger to others if other conduct in their recent history "clearly form[s] a foundation for predicting future dangerousness." State v. L. R., 283 Or.App. 618, 625, 391 P.3d 880 (2017) (quoting State v. M. A., 276 Or.App. 624, 629, 371 P.3d 495 (2016)). When relying on threats or other nonviolent conduct, the state "will generally have to provide evidence that shows that the appellant's threats of future violence are accompanied by an overt act demonstrating an intention and ability to carry out the threats or other circumstances indicating that actual future violence is highly likely." Id.
The state argues that evidence of appellant's aggressive behavior in the hospital, comments about the LGBTQ community, and biting a technician's thumb when he was placing a bag over appellant's head was sufficient for a rational trier of fact to conclude appellant was a danger to others. The state relies on testimony from two investigators and appellant's psychiatrist asserting that appellant would very likely return to his antagonizing behavior of spitting and making vague threats that he exhibited when first entering the hospital, even though he was well behaved leading up to and during the hearing.
While hospitalized, appellant spit at or on several staff, threatened one staff member directly while he was in isolation, vaguely threatened anyone who told him he needed to quit smoking, and was periodically agitated, raising his voice or banging on the wall in isolation.
We have found previously that someone was not a danger to others when the only violent act was a response to or resisting confinement in the hospital setting. See State v. J. G., 302 Or.App. 97, 102, 458 P.3d 721 (2020) (holding that punching another patient in the back and being argumentative and verbally aggressive was not enough to infer that future violence was highly likely); State v. S. E. R., 297 Or.App. 121, 124, 441 P.3d 254 (2019) (concluding that kicking a nurse while resisting restraint in the hospital and threatening to slit the throat of another nurse was not sufficient to infer that the appellant was a danger to others outside the hospital setting); State v. S. R. J., 281 Or.App. 741, 754-55, 386 P.3d 99 (2016) (holding that kicking a security guard while he restrained the appellant in the hospital was "insufficient to clearly form the foundation for a prediction of future dangerousness," even though the appellant displayed other aggressive behavior while hospitalized (internal quotations omitted)); State v. A. M. R., 236 Or.App. 186, 192, 235 P.3d 720 (2010) (concluding that kicking, spitting, and biting while resisting arrest was insufficient to form a foundation to predict future violence). While fact matching in civil commitment cases is not always useful, State v. T. T., 293 Or.App. 376, 384, 428 P.3d 921, rev den, 364 Or. 209 (2018), we agree with appellant that, similar to S. E. R., the violence demonstrated and threats made in the hospital were not enough to conclude that future violence was highly likely outside the hospital setting. S. E. R., 297 Or.App. at 124.
Here, however, the state offered testimony from appellant's psychiatrist and two investigators. The three witnesses all agreed that appellant would revert back to his aggressive behavior-spitting and making vague threats- that he exhibited just before his hospitalization and during the first few days of his hold. That said, we have held that "verbal threats of violence do not satisfy the future dangerousness requirement if they are not accompanied by any overt act to follow through with the threat or if they are not made under circumstances that make actual future violence highly likely." State v. R. H., 212 Or.App. 479, 484-85, 157 P.3d 1286 (2007). While appellant endorsed anti-LGBTQ rhetoric, he also told staff and testified that he did not want to harm anyone. Without an overt act, evidence of his fixation on religious anti-LGBTQ beliefs is not sufficient to infer that actual future violence is highly likely. Additionally, no evidence was provided to suggest that his spitting was an indicator of future violent behavior.
In S. E. R., we found that contributing to the conclusion that appellant was not a danger to others was the lack of any psychiatric testimony "indicating how appellant's conduct inside the hospital was predictive of her conduct outside of it." 297 Or.App. at 125.
Because the facts that the trial court relied on were insufficient to infer that appellant was a danger to others outside the hospital setting, the trial court erred when it committed appellant to the custody of OHA under ORS 426.130(1)(a)(C).
See State v. J. W. B., 312 Or.App. 549, 551, 492 P.3d 142 (2021) (holding that evidence of appellant resisting restraints and making verbal threats, without more evidence of physical aggression, was insufficient to infer that actual future violence was highly likely); J. G., 302 Or.App. at 102; S. E. R., 297 Or.App. at 124; State v. G. A. K., 281 Or.App. 815, 821, 384 P.3d 555 (2016) (holding that "vague threats, in the absence of any overt act to carry them out, and in the absence of any overt violent act, are insufficient to establish that it is highly likely that appellant would engage in actual future violence"); S. R. J., 281 Or.App. at 754-55; A. M. R., 236 Or.App. at 192.
Reversed.